Professional Documents
Culture Documents
2d 1203
1978-1 Trade Cases 61,912
William E. Sadowski, Miami, Fla., Jackson & Jones Law Corp., CoCounsel, Stanley R. Jones, Tustin, Cal., for defendants, third-party
plaintiffs-appellants.
Albert E. Fey, New York City, George L. Saunders, Jr., Chicago, Ill., for
plaintiff-appellee.
John K. Aurell, Miami, Fla., for other interested party.
Appeal from the United States District Court for the Southern District of
Florida.
Before THORNBERRY, GODBOLD and FAY, Circuit Judges.
GODBOLD, Circuit Judge:
Defendant Milgo appeals from the district court's order of summary judgment
against it as to some of its counterclaims. We conclude that we lack jurisdiction
to hear an appeal from this order.
I. Facts
2
II. Appealability
4
Milgo has raised two possible grounds for appealability: whether the partial
summary judgment is a final decision under the collateral order doctrine, hence
appealable under 28 U.S.C. 1291, and whether it is an interlocutory order
refusing an injunction, hence appealable under 28 U.S.C. 1292(a)(1). We
conclude that the district court's order is not a final decision. We need not
decide whether the district court's order is an interlocutory order refusing an
injunction because the prayer for injunctive relief, which the order refused, is
now moot.
6(A.) Collateral order doctrine
7
Section 1291 confers on the courts of appeals "jurisdiction of appeals from all
final decisions of the district court." 28 U.S.C. 1291. Since the partial
summary judgment against Milgo's counterclaims does not end the litigation, it
can be a "final decision" only by virtue of the collateral order doctrine. See
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93
L.Ed. 1528 (1949); Abney v. U. S., 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d
651 (1977); Litton Systems, Inc. v. Southwestern Bell Telephone Co., 539 F.2d
418 (CA5, 1976); In re Nissan Motor Corp. Antitrust Litigation, 552 F.2d 1088
(CA5, 1977). The statutory basis for this doctrine is that a trial court's
disposition that is not a final judgment may nevertheless be a final "decision" if
it adjudicates an "important right" collateral to the cause of action asserted that
would otherwise be "lost, probably irreparably" if review had to await a final
judgment. Abney, supra, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d at 659,
quoting Cohen, supra, 337 U.S. at 546, 69 S.Ct. at 1225, 93 L.Ed. at 1536. We
have granted review under the collateral order doctrine when we have found
either that the order concerned an issue wholly separable from the remainder of
the case or that irreparable injury will result. See 21 Turtle Creek Square, Ltd.
v. New York State Teachers' Retirement System, 404 F.2d 31, 33 (CA5, 1968).
In this case we find that the summary judgment neither concerns a wholly
separable issue nor threatens irreparable injury.
of the merits of the case." Id., quoting Cohen, supra, 337 U.S. at 546, 69 S.Ct.
at 1225, 93 L.Ed. at 1536. Indeed, if the DAA counterclaims were all this case
were about, the order would represent the end of the case. Litigation continues
only because a claim (patent infringement) and other counterclaims
(discriminatory royalty) remain to be adjudicated.8
10
Nor can Milgo point to any right that would be "lost, probably irreparably,"
from waiting to appeal the DAA matters after decisions on its other
counterclaims and on Western's infringement claim. The only injury Milgo may
undergo here is that it may have to return to the district court to try those claims
based on the DAA device. This is not enough. In sum, the order dismissing
certain of Milgo's counterclaims is neither collateral nor irreparably injurious.
Milgo claims alternatively that the district court's dismissal of those parts of its
counterclaims that challenged the DAA interconnection requirement was a
refusal of Milgo's request for injunctive relief and is therefore appealable under
1292(a)(1).9 We need not decide whether the order refused injunctive relief
because the prayer for injunctive relief is now moot.
13
During the pendency of this appeal the FCC's registration program went into
effect. All the parties recognize that this program prevents Bell from
categorically requiring the use of DAAs with modems not of Western's design.
Accordingly, there is no longer any need for injunctive relief against the DAA
requirement, and the justification for appellate review under 1292(a)(1) no
longer exists.
14
By complaining against Bell's DAA policy, Milgo sought both injunctive relief
and damages. The district court's order effectively refused not only injunctive
relief but also an award for damages, which is not moot. Appellate review
under 1292(a)(1) is ordinarily confined to the injunctive aspects of the district
court's order, Abercrombie & Fitch Co. v. Hunting World, Inc., 461 F.2d 1040
(CA2, 1972); Zwack v. Kraus Brothers & Co.,237 F.2d 255 (CA2, 1956);
Wrist-Rocket Manufacturing Co. v. Saunders Archery Co., Inc., 516 F.2d 846
(CA8), cert. denied, 423 U.S. 870, 96 S.Ct. 134, 46 L.Ed.2d 100 (1975); see C.
Wright, Law of Federal Courts 513 (3d ed. 1976), but such confinement is a
rule of judicial administration, not of jurisdiction. An appellate court has power
to review the case to the extent it chooses to exercise it. See Aerojet-General
Corp. v. American Arbitration Association, 478 F.2d 248, 252-53 (CA9, 1973);
Hurwitz v. Directors Guild of America, Inc., 364 F.2d 67, 69-70 (CA2, 1966).
See also Smith v. Vulcan Iron Works, 165 U.S. 518, 524-25, 17 S.Ct. 407, 410,
The parties have also urged, somewhat tardily, that we should resort to the
extraordinary writ of certiorari to allow interlocutory review. See All Writs
Act, 28 U.S.C. 1651. Such writs should be used to allow interlocutory review
only in very limited and unusual circumstances. We believe that review by
certiorari is not appropriate for this case.
17
"Foreign Attachment" Tariff Revisions in A.T.&T. Tariff FCC Nos. 263, 260,
and 259, 15 F.C.C.2d 605, 607 (1968)
See First Report and Order in Docket No. 19528, 56 F.C.C.2d 598 (1975), aff'd,
North Carolina Util. Comm'n v. FCC (North Carolina II ), 552 F.2d 1036 (CA4,
1977), cert. denied, --- U.S. ----, 98 S.Ct. 222, 54 L.Ed.2d 154 (1977). Although
modems were not specifically included within the scope of the registration
program, the FCC later established that they were included. Memorandum
Opinion and Order in Docket No. 19528, 57 F.C.C.2d 1216, 1219 (1976)
will be assigned to the summary calendar or the oral argument calendar. If not
placed on the summary calendar the case will be assigned to an oral argument
panel for hearing and decision. The present panel is the oral argument panel
6
Milgo based much of its argument on Litton Systems, Inc. v. Southwestern Bell
Telephone Co., 539 F.2d 418 (CA5, 1976), in which the court regarded as a
collateral order a stay of an antitrust suit pending referral of an antitrust claim to
state utility commissions so that they could clarify the degree of state action
involved by virtue of their ratemaking. The court said that the stay pertained not
to the merits of the claim but rather to the manner in which the case would be
tried. 539 F.2d at 426. In this case, however, the court's order is not a stay
pending referral but an outright dismissal